High Court of Ireland Decisions

Judgment Title: S. -v- Refugee Appeals Tribunal & Anor

Neutral Citation: [2009] IEHC 604


High Court Record Number: 2008 887 JR

Date of Delivery: 09 December 2009

Court: High Court

The applicant in this case seeks leave to apply for judicial review by way of an order of certiorari quashing the decision of the first named respondent of 28th April, 2008 as notified by letter dated 13th May, 2008. The basis of the challenge to the decision is, in essence, an attack on the findings as to credibility of the applicant made by the Tribunal member.

Background
The applicant arrived in this country in August, 2006. She was at the time an unaccompanied minor. She has stated that she is a member of a minority ethnic clan, the Ashraf clan and she stated that she and her family had suffered greatly as a result of that ethnicity at the hands of another ethnic group, the Marehan. She has outlined a series of events in this respect namely:

(1) Her father was killed by the Marehan in November, 2003. She was kidnapped in June, 2002 by members of the militia, taken to a house and detained for two weeks. She was beaten and raped on an almost daily basis. As a result she suffered severe bleeding and became ill. She was then released by her detainees close to home. Her mother looked after her and she did not seek medical attention.

(2) In November, 2003 there was another attempt to kidnap the applicant and her sister. While resisting, her father was shot dead. The family left their home and moved to another part of Somalia to live with an uncle. He died in 2005 and the family returned to their home. In 2006 the applicant was again kidnapped, brought to a storehouse and beaten and raped. She was required to do domestic duties and whilst doing so the militia was attacked. She lay on the ground during the shooting and when it finished, she escaped along with a number of other female detainees. She returned to her home but her family were no longer there. She stayed with a neighbour, who advised her to leave Somalia. Her neighbour gave her some money and advised her to travel to Ethiopia which she did in June 2006. Upon arrival there, she was directed to a woman who lived in Addis Ababa, who was a member of the Ashraf ethnic group. She stayed with that woman for almost four weeks. She informed the woman of the fact that an uncle of hers lived in the United States. The woman had contacts in the United States with other member of the Ashraf clan and after little more than a week, the woman located the applicant’s uncle.

(3) The applicant spoke with her uncle on the telephone and requested his assistance. The applicant does not know where her uncle resides in the United States. Her uncle instructed the woman with whom the applicant was residing to organise her travel to the United States and he sent money for the journey. She travelled from Addis Ababa and transited in another country for a brief period of approximately two hours. She travelled in the company of an agent who brought her to Dublin. She was left in Dublin city and has not seen the agent again. She states that she has requested the International Red Cross to trace her uncle, but has not as yet been successful. She then applied to the Refugee Applications Commissioner as an unaccompanied minor for the purpose of seeking asylum.

“In relation to the age of the applicant it is true that she was over the age of majority by the time the appeal was heard. Nevertheless she was still illiterate and uneducated. In my view even though she does not come within the U.N. guidelines dealing with the procedures for dealing with unaccompanied minors, February 1997, and which highlight the need to look to “the best interests of the child”, this applicant was nevertheless a child in every way except her actual age. She was and still is to a large extent uneducated and illiterate, and in a foreign environment, and particular care is required in dealing with her application, especially from the point of view of the benefit of the doubt and assessment of credibility. I am satisfied that while there is no evidence, nor is it contended, that the appeal was conducted in anything other than a fair manner, nevertheless, the Tribunal member has failed to attach any significance to the evidence of Ms. Hogan or indeed to consider same in any way in relation to the ability of the applicant to properly tell her story.”

“Having said that, when considering claims by minors, The Separated Children in Europe Programme, Statement of Good Practice, states at 11.6, in examination of their claims it may be necessary to have greater regard to certain objective factors, and should determine based on these factors, whether a child may be presumed to have a well founded fear of persecution. With regard to assessing the risk of future persecution for convention reasons were the applicant to return to Somalia, credibility concerns arise in relation to the applicant’s testimony and therefore the applicant, even considering her young age and her entitlement to a liberal application of the benefit of the doubt cannot be given the benefit of the doubt.”

Analysis of the impugned decision
Five points were highlighted in relation to the findings of a Tribunal member in respect of the applicant’s credibility. The first of these relates to the location of the second place of detention of the applicant. The second point relates to the lack of assistance from local people on occasions when the applicant and other detainees were sent to gather firewood. The third point relates to the manner in which the applicant and other detainees were able to escape from the militia. The fourth point raised relates to the manner in which the applicant contacted her uncle whilst in Ethiopia and the fifth point relates to the issue as to the applicant’s knowledge of Somalia and the conclusion reached by the Tribunal member that she had not been resident in that country for some time. I now propose to look at those matters in some detail and the arguments made in respect of the findings in that regard. The first point raised was in relation to the location of the place of detention. In order to support the contentions of the applicant in this regard, a reference was made to an affidavit sworn by Ms. Ann-Laure Chasse McDermott, a case worker with the Refugee Legal Service who took a note at the hearing of the applicant’s appeal. That note was exhibited in her affidavit. No issue has been taken with the accuracy of the note which is stated to be an accurate reflection of what occurred at the hearing of the appeal before the first named respondent. In essence, the issue was: where was the applicant detained during her second period of detention in 2006? In her interview, the applicant stated (question 10d) that she had been brought to “a house in the middle of the town”. According to the notes of the appeal hearing the discussion that took place was as follows:

“C.L.: Not far from the city.

P.O.: At the time of the interview, you said that the house was in the middle of the town.

C.L.: Yes.

P.O.: But you said today, outside of the town.

C.L.: It was not far; even the house was a rear house, stone, so not outside.”

“T.M.: Today you said you were outside the town and at your interview you said inside the town?

C.L.: It was not far from the town.

T.M.: You’re (sic) interview said middle town?

C.L.: Yes.”

“The interview said middle of the town, to us that area, the centre of the city, today she said it was not far to us it is different.

C.L.: It is only explanation, there is no middle, you can be anywhere within the city.”

“P.O.: That second time you were taken in 2006, where was that house?

C.L.: Not far from the city.

P.O.: At the time of the interview you said that house was in the middle of the town.

C.L.; Yes.

P.O.; But you said today, outside of the town?

C.L.: It was not far; even the house was a rear house, stone, so not outside.”

The second point raised on behalf of the applicant relates to the findings in regard to the possibility of intervention by people who witnessed the plight of the applicant. In this regard I think I should refer to the precise finding of the first named respondent herein. During the course of the analysis of the applicant’s claim it is stated at page 16 thereof as follows:

“The applicant states that on the last occasion that she was kidnapped she was dragged through the town and that was witnessed by people, however they did not intervene to help her (page 12a, Interview). Baardhere is a relatively large town and it is difficult to believe that no one would have even tried to assist the applicant while she was being treated in the manner alleged. Thereafter, the applicant states that once a week she and the two other girls would be sent to pick firewood and that the militia guarded them when they were taken to collect this wood. They always went to the same area to collect the wood and it took one hour to get to this place. Sometimes they walked to the area to get the wood and sometimes they were taken by car. They were always taken in the afternoon. As previously stated, Baardhere is a relatively big town within the Gedo region. It is difficult to believe that the abducted girls would not have come to the notice of the people of Baardhere, or neighbours or family while regularly going through the town with the militia, in the manner described.”

Counsel for the respondents stated that the evidence of the applicant was that this was a finding open to the Tribunal member in the light of the evidence. She referred to the question put to the applicant during the course of the interview when she was asked about the second abduction. She was asked:

Question: “How did they take you there”?

Answer: “They pulled me on the ground”.

Question: “Did anyone in the town see this”?

Answer: “Yes, but they don’t say anything”.

Question: “So no one intervened”?

Answer: “No”.

In the course of submission, reference was made to the decision in the case of Da Silveira v. The Refugee Appeals Tribunal [2004] IEHC 436 in which Peart J. stated:

“But reliance on what one firmly believes is a correct instinct or gut feeling that the truth is not being told is an insufficient tool for use by an administrative body such as the Refugee Appeals Tribunal. Conclusions must be based on correct findings of fact. A factual error of sufficient importance will often have the capacity to as least cast some doubt upon the integrity of the decision making process, and in those circumstances, this Court’s function is to intervene, and if necessary on a substantive hearing, to provide redress.”

The third finding which is attacked relates to the circumstances in which the applicant’s escape took place. The Tribunal found that it was difficult to believe that the militia would simply have forgotten about the applicant and the two other girls and that they could escape with such ease from the situation. The applicant’s claim is that when she was collecting wood with the other two girls who had been detained, the militia attacked other men. In her interview she stated as follows (at p. 12d):

“One day when we went to get the firewood, some other militia on the farm attacked them. They had a fight. They started shooting each other. When they faced each other we went away, we put the firewood down and went behind the trees, I got scared, we ran away.”

“One day man took me out to collect firewood. To make food. While we were collecting wood a militia attacked the other militia. We lied on the ground once the shooting finished and they forgot about us and ran away.”

Having regard to the nature of this issue and looking at the matters raised on behalf of the applicant, I can only say that I agree with the submission on behalf of the respondents that the finding made was one which was open to the Tribunal member to make.

The next issue raised by counsel on behalf of the applicant related to the issue of contact with the applicant’s uncle in the United States. The finding of the Tribunal member in that regard is as follows:

“The applicant states that she had lived in Ethiopia for one month and her uncle in America had been contacted during this time. The applicant states that the lady in Ethiopia had been able to contact the applicant’s uncle by simply supplying this lady with her uncle’s name and sub-plan. It is difficult to believe, considering the size and population of America and the limited information the applicant held in relation to her uncle, that the applicant’s uncle could have been located in such a manner and within seven or eight days. The applicant had no difficulty in Ethiopia at this time and she lived in the Ashraf community. At this point in time the applicant was the only member of her family who could be found. She was a minor at this time and her uncle in America was apparently going to assist her and organise her travel to America. The applicant stated that she had spoken to her uncle on the phone from Ethiopia. It is also difficult to believe considering the applicant’s stated circumstances that the applicant would not have known generally where her uncle lived in America.”

“The applicant asked this lady to look for her uncle who lives in the U.S. The lady had a son in the U.S. and so the applicant gave this lady her uncle’s name and after 7/8 days the applicant’s uncle was found. The applicant said she knows her uncle is living in the U.S. but she does not know where. She spoke with her uncle on the phone and told him that she needed his help. The applicant’s uncle instructed the Ashraf lady to organise the applicant’s travel to the U.S. and he sent the money for the travel.”

“When asked if she had given the full name of her uncle to the HSE, the applicant said she had given the HSE his two names. It was put to the applicant that her uncle had three names. The applicant said that Joanne [social worker] had told her to write the family name and his first name.”

Based on the finding of the Tribunal member in relation to the applicant’s uncle, the question was posed as to whether the Tribunal member was saying that the applicant did not find her uncle or is the Tribunal member concluding that the applicant’s uncle did not exist? It was submitted that there was nothing in the evidence before the Tribunal member which would lead to the conclusion that the applicant’s uncle was a fabrication. If that was the basis of the finding it was submitted that this amounted to a finding made in violation of natural and constitutional justice as it was not made known to the applicant that the Tribunal member did not believe that her uncle existed and so the applicant was not afforded an opportunity to address this issue. Alternatively, it was submitted that if it was a finding that the applicant did not, indeed, find her uncle, this is also conjecture. Accordingly, it is subject to the same criticism. By way of response it was pointed out by counsel on behalf of the respondents that the finding of the Tribunal member was twofold, namely, that it was difficult to believe that the applicant’s uncle could have been located in the United States in the manner described within 7 or 8 days. The other aspect of the evidence that was not believed was that given the applicant’s evidence that she had spoken to her uncle on the phone from Ethiopia that she would not have known generally where her uncle lived in America, particularly as he had apparently indicated that he was going to assist her and organise her travel to America. It was pointed out that in the course of the appeal before the Tribunal she was asked about the information given to the lady in Ethiopia about her uncle’s name and the fact that she gave three names to that woman but when asked about his name in Ireland she only gave two names. Her explanation for that was that she was told to give the uncle’s first name and family name. It was added by counsel that it was not unreasonable for the Tribunal member to conclude that when the uncle was arranging the applicant’s travel and she had spoken to him and was going to meet him, that she would not in a general way know where he was located in the United States. It was also noted that since she arrived in Ireland the applicant had been unable to locate her uncle. In all the circumstances, it was submitted that the finding of the Tribunal in this regard was a reasonable one.

In relation to this particular point I find it very difficult to see any basis on which the finding of the Tribunal member could be described as conjecture or irrational or in some way a breach of the applicant’s constitutional rights. It seems to me that the finding in relation to this aspect of the matter is one which was open to the Tribunal member having regard to the circumstances and the evidence provided.

The final issue that arose related to the applicant’s knowledge of the current situation in Somalia. In the course of the submissions before me and, indeed, in the written submissions, a number of questions put to the applicant in the interview were set out. I do not propose to refer to these matters in detail. In essence, the finding of the Tribunal member was that whilst the applicant had knowledge of Baardhere, the town she stated she came from, she had little information on the region as a whole. She was unable to provide much in the way of detail of events that had occurred in that region over the past few years and “used vague and broad generalisations when describing the situation there”. The conclusion reached by the Tribunal member was that her testimony during the interview suggested that while the applicant may have lived in Somalia at some point in time, she did not live there in the years immediately prior to her travelling to Ireland. It was submitted on behalf of the applicant that in reaching this finding the Tribunal member has had regard to irrelevant considerations. It was also submitted that the answers given by the applicant to the various questions posed are neither inadequate nor wrong. It was stated that there was no country of origin information attached to the section 13 report which suggested that the applicant was inaccurate in her answers and, accordingly, it is difficult to be clear on what the Tribunal member was referring to when describing the applicant’s knowledge as inadequate or insufficient.

Counsel on behalf of the respondents pointed out that the burden of proof rested on an applicant to show that they were a refugee and it was further pointed out that this issue had been determined against the applicant in the section 13 report. Therefore, it was argued that the applicant was aware that was an issue and should have been in a position to deal with that issue.

It was also contended on behalf of the applicant in regard to this issue that the finding was based not so much on anything stated by the applicant herself but rather on country of origin information which indicated that many persons of Ashraf ethnicity left Somalia in 1991 and went to live in Ethiopia. It was contended that this was an improper basis upon which to make a finding in relation to the applicant without that issue being put to the individual and the decision then being made on the basis of the individual’s knowledge and circumstances.

I think it is fair to say, as has been pointed out by counsel for the respondents, that the issue raised in the decision of the Tribunal member was the fact that during the interview the applicant showed a vague knowledge of the current situation in Somalia. She provided little information on the region in which she claimed to reside.

I can see no basis upon which the Tribunal member was not entitled to make the comments described in the decision on this issue.

Conclusion
A number of recent cases have considered in detail the manner in which the finding on credibility by a Tribunal member can be made the subject of judicial review. In the course of the hearing in this case I was referred to the judgment of the High Court in the case of Kikumbi v. ORAC & MJELR & RAT [2007] IEHC 11 in which Herbert J. at page 17 had the following to say:

“Once properly admitted, the weight (if any) to be given to any evidence is exclusively a matter for the decider of fact. This generally involves evaluating an account of events in his or her country of origin given by the Applicant for asylum. The probative value (if any), to be given to information or material properly received and considered by the decider of fact may sometimes be ascertained by reference to the cogency of the account itself and the absence of inherent contradictions and errors of substance in that account. Sometimes, it is possible also to compare various elements of the account with extrinsic material which the decider of fact can accept or, which is admitted to be reliable, viz. country of origin information from sources of proven and accepted accuracy and reliability, such as United Nations Reports. Sometimes, however, there is no yardstick by which to determine whether a particular account or part of an account is credible or not, other than by the application of common sense and life experience on the part of the decider of fact in the context of whatever reliable country of origin information is properly before him or her. Also, the decider of fact may have had the advantage of having seen and heard the Applicant for asylum relating his or her story, making all due allowance for the various factors indicated by the UNHCR Handbook as uniquely relevant to such an account giver. The obligation to give reasons, as explained by the Supreme Court in F.P. & A.L. v. The Minister for Justice Equality and Law Reform (above cited), does not, in my judgment, require the decider of fact why she or he applying such common sense and life experience found that a particular account or aspects of such an account to be not credible.”

The issue of credibility has also been considered in a number of other recent cases which have attempted to gather together the various principles which should guide this Court when dealing with a challenge to the credibility findings of a Tribunal member. Although those cases were not specifically cited to me in the course of this hearing, I think they are widely known and it is worth referring to one of those decisions. In the case of S.S.S. v. Minister for Justice Equality and Law Reform & Refugee Appeals Tribunal [2009] IEHC 329, Cooke J. summarised the guiding principles in respect of challenges to a Tribunal member’s treatment of the issue of credibility. At paragraph 6 of his judgment he stated as follows:

“Without being exhaustive, it appears to the Court that the guiding principles which emerged from the case law might be usefully summarised as follows:

1. The decision on credibility is to be made by the Commissioner at first instance and on appeal by the Tribunal member.

2. Providing a finding on credibility is based on an objective appraisal of all relevant evidence and information and free from any material infringement of applicable law or the principles of natural or constitutional justice, it will be immune from challenge by judicial review.

3. This Court is not concerned with the issue of credibility itself and must not fall into the trap identified by Peart J. in the Imafu case of substituting its own assessment credibility for that of the decision makers during the asylum process.

4. The Court is only concerned with the legality of the process by which these decision makers have reached a negative conclusion on credibility and once the Court finds itself querying whether or not a decision maker has perhaps been too harsh in assessing the answers given to questions put in order to test credibility, where the questions are otherwise logical and appropriate in the testing process, the Court is in danger of substituting its own view.

5. The Court must also be wary of acceding to an invitation to deconstruct a decision on credibility by isolating individual parts of the appraisal and subjecting particular findings to distinct analysis.

6. In most instances a decision maker reaches a single overall conclusion on credibility based on a cumulative impression gleaned from the applicant’s responses to questions on various parts of the claim and on the personal history as given, including the way in which the story is told, the applicant’s demeanour and his or her reactions when doubt is expressed or discrepancies or contradictions are highlighted.

7. This decision maker must, of course, consider all pertinent evidence and information and must weigh the material objectively and not selectively.

8. The decision must, therefore, be read as a whole and an error in respect of one or more specific factors identified as undermining credibility will not invalidate the entire decision if the negative conclusion is adequately sustained by the remaining factors relied upon by the decision maker.”

“Many factors arose in the course of the interview which may well not have been satisfactorily explained in the views of Mr. Kelly, or indeed in the view of any reasonable, right minded individual. The primary concern that I have in this case and where I have a feeling of unease and disquiet in relation to the interview, and I do not wish to be unfair or perhaps to perpetrate an injustice against either party, and in that regard I am referring to the applicant and Mr. Kelly. The matter that really concerns me in this case is the fact that the issue of the manner of the applicant’s travel following his escape from Douala through to Dublin, and the fact that quite clearly the time framework as given by the applicant would not seem to be physically possible. That particular issue was never taken up with the applicant in the course of his interview, or indeed subsequently, and yet when one turns to the section 13 report in this matter one finds Mr. Kelly stating:

“The applicant’s travel details recorded in the interview are totally relevant to his claim. There is a continuum between his escape from custody and his arrival in Dublin. There are discrepancies in the details supplied, principally the fact that according to his account he arrived here a day earlier than it was physically possible. His overland journey to Lagos would not appear possible in the time frame he outlined. The overall impact is that it discredits the other claims made by the applicant.”

I am of the view that since this matter is or has been so crucial to the determination made in this particular case I consider it was a breach of constitutional and natural justice in not giving the applicant the opportunity to deal with those matters before making a determination in this case.”

I have carefully considered all of the submissions made to me in this case by counsel on behalf of the applicant and of the respondents. I think it will be seen from the manner in which I have considered the various points raised by counsel on behalf of the applicant and the response thereto that in essence this is a case in which the Court has been invited to deconstruct the decision on credibility by isolating parts of the appraisal and subjecting findings to distinct analysis. It is not a case in which there are material or cogent errors of fact in the findings of the Tribunal member. It is not a case in which the findings of the Tribunal member are ones which were not open to the Tribunal member to make having regard to the facts and circumstances of the applicant, the relevant country of origin information and the overall circumstances and material before the Tribunal member. The Tribunal member had careful regard to the age of the applicant at the time of her application. Having given the matter consideration, I cannot see that the applicant has established substantial grounds for arguing that the decision of the Tribunal member in this case should be quashed. In the circumstances I must refuse the application for leave.